Category: RRSPs/Insurance Policies
Occasionally in litigation, an innocent party will get caught in the crossfire between two litigants that have made competing claims to property held by the innocent party. The classic case is that of an insurance company in possession of the proceeds of an insurance policy, the benefit of which is claimed by two parties.
The insurer may not necessarily be a party to the litigation between the two claimants, but they are nonetheless implicated given that they hold the coveted payout. What is the insurer to do? Enter the interpleader motion.
The interpleader motion is a powerful yet rarely utilized tool that can be used by an innocent party to essentially extricate itself from a proceeding in which competing claims have been made against property held by that party. Rule 43.02 of the Rules of Civil Procedure provide that a party may seek an interpleader order in respect of personal property if,
(a) two or more other persons have made adverse claims in respect of the property; and
(b) the first-named person (being the “innocent” party),
(i) claims no beneficial interest in the property, other than a lien for costs, fees, or expenses; and
(ii) is willing to deposit the property with the court or dispose of it as the court directs.
In other words, the interpleader motion permits a party to seek an order from the court allowing that party to deposit, with the Accountant of the Superior Court of Justice, the property against which the adverse claims are being made. However, that party must not have any beneficial interest in the property being deposited, although they are entitled to have any legal fees in bringing the motion, and other reasonable expenses, paid out of that property.
Some cases have opined on whether the court hearing the interpleader motion has an obligation to assess the likelihood of success of one or both of the claims to the property at issue. In Porter v Scotia Life Insurance Co, for example, the court considered whether, notwithstanding that one of the competing claims was “without strong foundation and built upon hearsay and suspicion”, it nonetheless held that the claim was “not frivolous” and granted the interpleader order.
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The Supreme Court of Canada’s recent decision in Moore v Sweet provided meaningful clarification on the Canadian law of unjust enrichment and, in particular, the juristic reason analysis.
As it made a finding of unjust enrichment, it was not necessary for the Court to consider the second issue before it, being whether, in the absence of unjust enrichment, a constructive trust could nevertheless be imposed in the circumstances on the basis of “good conscience”.
In 1997, the Supreme Court released its decision in Soulos v Korkontzilas. That case considered situations that may give rise to a constructive trust remedy. In referring to the categories in which a constructive trust may be appropriate, which were noted to historically include where it was otherwise required by good conscience, Justice McLachlin (as she then was) stated as follows:
I conclude that in Canada, under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, as well as to remedy unjust enrichment and corresponding deprivation…Within these two broad categories, there is room for the law of constructive trust to develop and for greater precision to be attained, as time and experience may dictate.
Since 1997, Soulos and the above excerpt have been interpreted inconsistently by scholars and courts of appeal throughout Canada. Some consider Soulos to restrict the availability of constructive trust remedies to only situations where there has been a finding of unjust enrichment or wrongful conduct, while others favour a more liberal interpretation.
The appellant in Moore v Sweet sought, in the alternative to a remedy on the basis of unjust enrichment, a remedial constructive trust with respect to the proceeds of the life insurance policy on the basis of good conscience. In choosing not to address this issue, Justice Côté (writing for the Majority) stated as follows:
This disposition of the appeal renders it unnecessary to determine whether this Court’s decision in Soulos should be interpreted as precluding the availability of a remedial constructive trust beyond cases involving unjust enrichment or wrongful acts like breach of fiduciary duty. Similarly, the extent to which this Court’s decision in Soulos may have incorporated the “traditional English institutional trusts” into the remedial constructive trust framework is beyond the scope of this appeal. While recognizing that these remain open questions, I am of the view that they are best left for another day.
It will be interesting to see if and when the Supreme Court ultimately chooses to determine “the open questions” regarding the availability of the remedial constructive trust. Until then, it appears that some debate regarding the circumstances in which it may be imposed will remain.
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If a party refers to a document in a pleading, the party de facto waives any privilege attaching to the document, and the document has to be produced.
That is the lesson that we are reminded of in Master Short’s decision in TTC Insurance v. MVD Law, 2018 ONSC 2611 (CanLII).
There, TTC Insurance, the insurer for the TTC, alleged that the defendant engaged in an unlawful scheme to defraud the TTC by intentionally submitting forged invoices. In the Statement of Claim, the plaintiff referred to an audit and investigation that was carried out by the plaintiff. The defendant sought production of the details and results of the audit and investigation. TTC Insurance resisted, claiming privilege.
Master Short ordered the plaintiff provide the contents and results of the audit and investigation giving rise to the claim.
Master Short cited case law to the effect that a waiver of privilege does not occur simply because a party refers to the receipt of legal advice, or where a party states that they relied on legal advice. However, it is waived where the party uses the legal advice as a substantive element of the claim. “It is waived when the client relies on the receipt of advice to justify conduct in respect to an issue at trial.”
It should also be noted that once solicitor-client privilege is waived, the waiver applies to the entire subject-matter of the communications.
Master Short’s succinct conclusion was that a party is entitled to have produced for his inspection any document referred to in a pleading or affidavit delivered by another party whether or not that document would otherwise be privileged. Master Short also relied on Rule 30.04(2) which provides that a request to inspect documents may be used to obtain the inspection of any document in another party’s possession, control or power that is referred to in the originating process, pleadings or an affidavit served by the other party.
Thus, be careful of what you plead: if you plead a document, you will have to produce it, privileged or not.
As Master Short set out in the preamble to his decision:
The Moving Finger writes; and, having writ,
Moves on: nor all they Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it.
Have a great weekend.
The practice of injecting policy considerations into court decisions has long been a tenet of the Ontario judiciary. However, such considerations may arguably raise questions that go beyond the scope of the decision. Cotnam v Rousseau, 2018 ONSC 216, is one such case.
In Cotnam, the Court was tasked with determining whether a pre-retirement death benefit received by a surviving spouse was available to be clawed back into an Estate pursuant to section 72 of the Succession Law Reform Act (the “SLRA”). The Respondent took the position that section 48 of the Pension Benefits Act (the “PBA”) sheltered the death benefit from being clawed back given that she was the spouse of the Deceased. The Court disagreed and held that such benefits ought to be available for claw back in order to prevent irrational outcomes resulting from their exclusion.
In the context of the facts at play in Cotnam, the Court reasoned in favour of equity, in particular, to ensure a dependant disabled child of the Deceased was properly provided for. However, the Court’s reasons appear to gloss over a fundamental conflict between the SLRA and the PBA, a clash about which the estates bar might have appreciated some judicial commentary. Specifically, the Court held that the provisions of the SLRA ascribing pension death benefits as available to satisfy a claim of dependant’s relief ought to prevail over the PBA’s provisions sheltering them from claw back.
Section 114 of the PBA provides that, “[i]n the event of a conflict between this Act and any other Act […] [the PBA] prevails unless the other Act states that it is to prevail over [the PBA].” The SLRA, in contrast, is silent as to whether its provisions are to prevail over those of the PBA.
However, the Court’s reasons make no mention of the interplay between section 114 of the PBA and the equities of ensuring the dependant daughter in Cotnam was properly provided for. While we may opine on the fact that the outcome in Cotnam favours equity over rote statutory interpretation, the estates bar is left to grapple with the apparent inconsistency with the intention of the Ontario legislature, and whether it will affect similar decisions going forward. As of this date, no written decisions have yet interpreted Cotnam, nor has the decision been appealed. Accordingly, it may be some time before the impact of the decision, if any, is felt.
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For many Canadians, one or more life insurance policies represent an important component of an estate plan. If a policy cannot be honoured as a result of the cause of the insured’s death, this may completely frustrate his or her testamentary wishes.
The terms of life insurance policies typically address the issue of whether a beneficiary will be entitled to the insurance proceeds in the event that an individual commits suicide. Policy terms typically include a restriction as to the payout of the policy if the insured dies by his or her own hands within a certain of number of years from the date on which the policy is taken out (most often two years).
With the decriminalization of physician-assisted death, there was initially some concern regarding whether medical assistance in dying would be distinguished from suicide for the purposes of life insurance. The preamble to the related federal legislation, however, distinguishes between the act of suicide and obtaining medical assistance in dying.
As mentioned by Suzana Popovic-Montag in a recent blog entry, the Canadian Life and Health Insurance Association suggested in 2016 that, if a Canadian follows the legislated process for obtaining medial assistance in dying, life insurance providers will pay out on policies that are less than two years old. Since then, the Medical Assistance in Dying Statute Law Amendment Act, 2017 has come into force to provide protection and clarity for Ontario patients and their families. This legislation has resulted in amendments to various provincial legislation, including the Excellent Care for All Act, 2010, a new section of which now reads as follows:
…the fact that a person received medical assistance in dying may not be invoked as a reason to deny a right or refuse a benefit or any other sum which would otherwise be provided under a contract or statute…unless an express contrary intention appears in the statute.
The amendments provided for within the legislation introduced by the Ontario government represent an important step in the recognition of physician-assisted death as a right that is distinguishable from the act of suicide. They also confirm the right of individuals who access medical assistance in dying to benefit their survivors with life insurance policies or other benefits.
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In yesterday’s blog post, I discussed Justice Gomery’s recent decision in Rehel v Methot, 2017 ONSC 7529, where the Court was asked to resolve the question of the beneficial entitlement to the Deceased’s life income fund account (the “Account”).
The Deceased named his ex-spouse, Sharon, as the beneficiary when the Account was first opened. However, in his later Will, the Deceased directed the Estate Trustee of his Estate to use the proceeds of the Account to service his debts.
Having concluded that the Sharon was not automatically entitled to the Account by operation of provincial pension benefits legislation, the residual question was whether the direction under the Will overrode the prior beneficiary designation in Sharon’s favour.
Designations Under Part III of the Succession Law Reform Act
Subsection 51(1) of the Succession Law Reform Act (the “SLRA”) states that a participant (i.e. the person entitled to designate another person to receive a benefit payable under a plan on the participant’s death) may designate a person to receive a benefit payable under a “plan” (as defined under the Act) by an instrument signed by him or her or by Will. Subsection 51(1) also states that the person may also revoke the designation by either of these methods.
However, pursuant to subsection 51(2) of the SLRA, a designation in a Will is only effective if it relates “expressly to a plan, either generally or specifically.” Similarly, under subsection 52(1), a revocation in a Will is effective to revoke a designation made by instrument “only if the revocation relates expressly to the designation, either generally or specifically.”
Subsection 52(2) goes on to state that a later designation revokes an earlier designation, to the extent of any inconsistency.
The Parties’ Positions
In Rehet, Sharon argued that the instructions under the Will were not an effective revocation under subsection 52(1), as they do not mention the earlier designation in Sharon’s favour.
Conversely, the Estate Trustee argued that the designation does not have to meet the formal requirements of subsection 52(1), so long as it complies with subsections 51(2) and 52(2). In other words, a designation should prevail if it is a later designation that relates expressly to a plan.
Both parties relied on the Court of Appeal’s decision in Laczova Estate v Madonna House (2001), 207 DLR (4th) 341, where the testator made a holograph will where she listed two RSPs as her assets and then made bequests to twenty two beneficiaries. The estate trustee in Laczova similarly argued that the reference to the RSPs under the testator’s will was a designation under subsection 51(2) and revoked the earlier designation in accordance with subsection 52(2).
In Laczova, the Court of Appeal rejected the estate trustee’s argument because the testator had not designated a specific person or persons as beneficiaries of her RSPs under her later Will.
Justice Gomery’s Decision
Although the Court of Appeal’s decision in Laczova had favoured the prior designated beneficiaries, Justice Gomery held that the Court’s conclusions supported the Estate Trustee’s position in Rehel.
Justice Gomery noted that the Court of Appeal had not rejected the logic of the Estate Trustee’s argument regarding the operation of subsections 51(2) and 52(2), despite finding in favour of the prior designated beneficiaries.
In addition, Justice Gomery held that the Court of Appeal’s reasoning in Laczova suggested that the rationale for subsection 51(2) is to give estate trustees and financial institutions sufficient information to act on the directions in a Will.
In the present circumstances, the Court concluded that there was no ambiguity as to the Deceased’s intentions. The Court concluded that the Will revoked the earlier designation, and that the designation under the Deceased’s Will prevailed.
Thank you for reading,
Umair Abdul Qadir
Beneficiary designations for life insurance policies can be an integral part of one’s estate plan. As designated policy proceeds typically pass outside of an estate, and are not subject to costly probate fees, policy holders often use these designations as a strategic method to transfer assets upon their death.
When a policy holder dies, a common challenge is determining where and what policies were held by the deceased. Records of insurance policies are often lost or misplaced by the time of a party’s death. This poses a problem for potential beneficiaries who are attempting to ascertain their entitlement under such policies.
Fortunately, the Canadian Life and Health Insurance Association’s OmbudService for Life and Health Insurance (“OLHI”) offers a valuable service to assist with locating missing policies of a deceased. With the submission and approval of an online application, OLHI will administer requests for a policy search to its extensive member base of Canadian Life and Health Insurance Companies. OLHI’s members account for 99% of the life and health insurance industry in Canada. Notably, if a policy was either granted by a non-member company, or was purchased outside of Canada, the policy will not be found by OLHI’s search. OLHI is also the only organization in Canada to offer this service.
OLHI outlines four requirements that must be satisfied before they will conduct a search:
- More than three months, but less than two years, must have passed since the policy-holder’s death;
- The applying party must already have searched for the policy themselves;
- The applying party must have evidence that a policy exists; and
- OLHI must find that it is reasonable to conduct the search.
OLHI provides an extensive list of suggestions for how to search for a policy or evidence proving a policy’s existence. An applying party is encouraged to:
- Explore the deceased’s storage places, such as safety deposit boxes and filing cabinets;
- Examine the deceased’s papers for policies, statements or notices from an insurance company;
- Review the deceased’s financial records for evidence of any premium payments, or purchases of life or travel insurance;
- Contact the deceased’s insurance agent, lawyer, account, and/or other advisor;
- Contract the deceased’s employer or former employer, or any professional associations of which the deceased was a member; and
- If the deceased received group disability benefits, contact the provider to determine if life insurance was included as a benefit.
Once requirements 1-3 (listed above) have been satisfied, an applying party may submit a two-step, online application form located at OLHI’s website. In addition to asking for the applicant’s basic contact information and the first and last name of the deceased, the form requires the applicant to summarize their evidence in support of the insurance policy’s existence.
If OLHI determines that a search is reasonable after reviewing the submitted application, they will send a search request to all OLHI insurance company members. An insurance company will only contact an applicant if they locate the deceased’s policy. While any interested party can apply for a search request, companies can provide information on a policy exclusively to the deceased’s executor, lawyer, beneficiary or heir.
For more information on searching for a policy of a deceased, visit OLHI’s website and submit an application.
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Beneficiary designations for a life insurance policy can be an important estate planning tool. However, as with any testamentary document or disposition, questions can arise about the insured’s actual intentions after death.
In the recent decision of Sun Life v Nelson Estate et al., 2017 ONSC 4987, the Court was asked to resolve such an ambiguity by considering the validity of an insurance declaration under the deceased’s Will and the validity of a change of beneficiary designation on file with the insurer.
Juanita (the “Deceased”) died in December 2009. The Deceased was entitled to group life insurance coverage with Sun Life in the amount of $148,500.00. Following the Deceased’s death, Sun Life deposited the proceeds of the policy into Court. The Deceased’s two children (the “Respondents”) brought a Motion for a declaration that they were solely entitled to the proceeds.
The Deceased had been married to the respondent, Justin Nelson (“Justin”), since 2006. Following the Deceased’s death, Justin signed an acknowledgment that the Respondents were entitled to the proceeds of the policy. He had made no claim to the proceeds since the Deceased’s death, and his whereabouts were unknown as of the hearing of the Motion.
Beneficiary Declarations Under the Insurance Act
Pursuant to section 190 of the Ontario Insurance Act, an insurance may designate the insured, the insured’s personal representative or a specific beneficiary pursuant to the insurance contract or a declaration, including a declaration under the insured’s Will.
Section 171(1) of the Act sets out the criteria for a valid declaration. The declaration must be made by way of an instrument signed by the insured. The declaration must also be an instrument with respect to which an endorsement is made on the policy, that identifies the contract, or that describes the insurance or insurance fund (or a part thereof).
The Issue in Sun Life v Nelson Estate
In 2007, the Deceased’s employer’s group policy with Sun Life was terminated and transferred to Desjardins Financial Security (“Desjardins”). The Deceased completed an application for enrolment and an irrevocable beneficiary designation in favour of the Respondents. She also advised her financial advisor that she had changed the beneficiary for the policy from Justin to the Respondents.
However, after the Deceased’s death, it was discovered that her coverage had remained with Sun Life instead of being transferred to Desjardins because she was disabled at the time of the transfer. As a result, there were two beneficiary designations in the Deceased’s file.
The Deceased’s Last Will and Testament also included a beneficiary declaration that directed the “proceeds of the insurance policy” to be held in trust for the benefit of the Respondents. The term “insurance policy” was not defined in the Will, and the Deceased was insured under two policies at the time of her death.
Thus, the Court was asked to consider the validity of the declaration under the Will and the validity of the change of beneficiary designation in 2007.
Justice Brown’s Decision
After reviewing the facts, the Honourable Justice Carole Brown concluded that the declaration under the Will was ambiguous and did not refer to a specific insurance policy. Accordingly, the declaration under the Will failed.
However, with respect to the change of beneficiary designation form, the Court was satisfied that the Deceased clearly intended for the Respondents to be the beneficiaries of the policy. The evidence before the Court included the Deceased’s statements to the Respondents, the change of beneficiary designation form and the fact that Justin had signed an acknowledgment that the Respondents were the beneficiaries of the policy.
In the result, the Court held that the change of beneficiary designation form was valid within the meaning of section 171(1), and ordered that the proceeds be paid out to the Respondents equally.
Thank you for reading,
Umair Abdul Qadir
Litigation surrounding the estate of a deceased person can be protracted and emotional for the parties involved. Unfortunately, given the high costs of litigation, it can also be incredibly costly and onerous for the parties to litigate their dispute all the way to a trial.
Rule 20 of the Rules of Civil Procedure offers one procedural mechanism by which a party can bring an expeditious end to a litigation matter. Pursuant to Rule 20.04, the Court shall grant summary judgment where it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence, or the parties have agreed to have all or part of the claim determined by a summary judgment and the Court is satisfied that it is appropriate to grant same.
Rule 20 was amended in 2010 in order to improve access to justice, providing the Court with broader evidentiary powers on a motion for summary judgment. However, as demonstrated by a recent decision, the Court may still conclude that it is not appropriate to grant summary judgment in view of the litigation as a whole.
The Facts in Bazinet v CompuCom Canada Co., e al.
In Bazinet v CompuCom Canada Co., et al., 2017 ONSC 5194, Robert (the “Deceased”) died without a Will. There was a dispute over life insurance proceeds that were available to the Deceased as part of an employee benefits package. The parties had not produced a designation form naming a beneficiary to the insurance proceeds.
The plaintiff, the Deceased’s common-law spouse, claimed that she was entitled to the life insurance proceeds. She asserted that she had witnessed the Deceased signing a beneficiary designation in her favour, and that the Deceased had confirmed that she was the beneficiary of the policy after their separation. The plaintiff’s claim sought declaratory relief against all of the defendants, punitive damages and general damages against the Deceased’s employer CompuCom Canada Co. (“CompuCom”).
The Deceased’s Estate Trustees denied the plaintiff’s claims and advanced a counterclaim on behalf of the Estate, seeking a declaration that there was no designated beneficiary and that the proceeds were thus payable to the Estate. As the plaintiff was the Deceased’s common-law spouse, she was not entitled to a share of the Deceased’s Estate on an intestacy.
The Estate Trustees moved for summary judgment, seeking an order dismissing the plaintiff’s claims against the Estate and granting the declaratory relief sought on their counterclaim. The plaintiff, in turn, requested that partial summary judgment be granted in her favour.
Justice Corthorn’s Decision
In response to the motion for summary judgment, CompuCom argued that the matter was not an appropriate case for summary judgment in the context of the litigation as a whole. CompuCom asserted that findings of credibility were necessary for the determination of the issues, that summary judgment would not be dispositive of the entire proceeding and that a trial was required for the fair and efficient determination of all of the issues.
Justice Corthorn agreed with CompuCom’s position, concluding that summary judgment would not dispose of the entire action, including the plaintiff’s claim for monetary damages. Justice Corthorn also held that there was a risk of duplicative proceedings and inconsistent findings.
Given the nature of the plaintiff’s claims, Justice Corthorn held that a majority of the claims would remain to be determined at trial even if summary judgment was granted in the Estate Trustees’ or the plaintiff’s favour. Justice Corthorn also noted that she was not confident that it would be possible to assess credibility and reliability without the benefit of a trial, with the risk that the trial judge would make different findings of credibility and fact or reach inconsistent conclusions upon hearing the oral evidence of the affiants.
Accordingly, the motion for summary judgment was dismissed. The Court also refused to grant the relief that the plaintiff was seeking in response to the motion.
Proceeding With Caution
Justice Corthorn’s recent decision reiterates the importance of carefully considering whether a motion for summary judgment is appropriate before proceeding. If unsuccessful, the parties incur the cost of an interim motion in addition to the costs of a trial.
In addition, motions for summary judgment can have significant cost consequences. Rule 20.06 of the Rules of Civil Procedure provides the Court with the ability to order payment of costs of motion for summary judgment on a substantial indemnity basis if a party acted unreasonably by making or responding to the motion or acted in bad faith for the purpose of delay.
Thank you for reading,
Umair Abdul Qadir
If a Registered Retirement Savings Plan passes outside of an Estate, for example to a spouse or child, who pays the tax – the recipient beneficiary or the Estate?
In order to answer this question, first consider the terms of the Will.
If the Will does not clearly set out who is responsible, attention must be turned to the statute and common law.
According to section 160.2(1) of the Income Tax Act, the deceased testator and the recipient of the RRSP are jointly and severally liable for the payment of the tax. The section specifically states that “…the taxpayer and the last annuitant under the plan are jointly and severally, or solidarily, liable to pay a part of the annuitant’s tax…”.
Ontario common law has, however, held that the payment of any tax liability with respect to an RRSP remains the primary obligation of the estate. Payment should be sought from the RRSP recipient, only if there are insufficient assets in the estate to satisfy the tax obligation.
In Banting v Saunders, Justice J. Lofchik held that:
“…the estate, rather than the designated beneficiaries, is liable for the income tax liability arising from the deemed realization of the R.R.S.P.’s and R.R.I.F.’s so long as there are sufficient assets in the estate including the bequest to Banting, to cover the debts of the estate and it is only in the event that there are not sufficient assets in the estate to cover all liabilities that the beneficiaries of the R.R.S.P.’s and the R.R.I.F.’s may be called upon.”
Nonetheless, as set out in O’Callaghan v. The Queen, the CRA may first seek payment directly from the RRSP recipient, instead of the estate, especially if there is a possiblity that there are insufficient assets in the estate to satisfy the tax.
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